Executive Orders

The President's role is not to enact laws, nor to repeal or amend laws already enacted, but rather to  "take care that the laws be faithfully executed."

Consiider this hypothetical:

A conservative Republican President has repeatedly asked a Democratic-controlled Congress to pass a law repealing the capital gains tax. The President believes this is a form of double taxation, and is therefore unfair to investors and harmful to the economy.

When Congress refuses to act, the President signs an executive order deferring enforcement of the capital gains tax and directing the IRS to issue "blue cards" to investors suspending their obligation to pay capital gains taxes.

How should we react to this use of executive orders by the President?

Lawrence and "Autonomy of Self"

Justice Kennedy, writing for the majority in Lawrence, asserts that "Liberty presumes an autonomy of self.." (p. 600).

Really? Constitutional liberty? Or philosophical liberty?

He notes that this autonomy of self includes such things as freedom of thought, belief, expression, and certain intimate conduct.

What about autonomy of self in matters of business and contract--the right of consenting adults to enter into contracts concerning employment, the right of the individual to decide whether to purchase health insurance (and what kind of policy to purchase), the right of the owner of a business to decide how to run her business, who to hire, how much to pay, whether to offer health insurance or not to the consenting adults whom she employs?

What about the autonomy to decide how to spend your own money, without government constantly taxing it away from you and giving it to others?

Lawrence is to sexual laissez faire whet Lochner was to economic laissez faire.

Just substitute "right to consensual sex" for "right of consensual contract" and the opinions are identical.

Should we go back to Lochner and use SDP to strike down the Welfare/Regulatory State?

Lawrence and Legitimate State Interests

In Lawrence, the State of Texas claimed that public morality provided a rational basis for its law forbidding homosexual anal sodomy. The Court held that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." (edited from this edition of casebook)


Suppose instead of relying on public morality, the State of Texas had argued that the sodomy law furthers a strong governmental interest in public health? Is public health a rational basis for upholding a law prohibiting conduct that has serious health consequences?




Consider the following link from the Center for Disease Control:



1. HIV/AIDS and Men Who have Sex With Men


Here is an excerpt from this CDC study:



"The term men who have sex with men (MSM) refers to all men who have sex with other men, regardless of how they identify themselves (gay, bisexual, or heterosexual). In the United States, HIV and AIDS have had a tremendous impact on MSM. Consider these facts:


* AIDS has been diagnosed for more than half a million MSM. Over 300,000 MSM with AIDS have died since the beginning of the epidemic.


*MSM made up more than two thirds (68%) of all men living with HIV in 2005, even though only about 5% to 7% of men in the United States reported having sex with other men....



*For complex reasons, HIV/AIDS continues to take a high toll on the MSM population. For example, the number of new HIV/AIDS cases among MSM in 2005 was 11% more than the number of cases in 2001. It is unclear whether this increase is due to more testing, which results in more diagnoses, or to an increase in the number of HIV infections. Whatever the reasons, in 2005, MSM still accounted for about 53% of all new HIV/AIDS cases and 71% of cases in male adults and adolescents.

See also CDC Basic AIDS Statistics information (good link).

Suppose Texas enacts its law prohibiting anal MSM conduct. Assuming a rational basis test applies, is the law rationally related to the state's legitimate interest in protecting public health by regulating this type of conduct?

Apart from the liberty interests involved (consenting adults right to contract vs. consenting adults engaged in sexual relationships), the majority opinions in Lochner and Lawrence are strikingly similar. Both reject public morality (social justice in the one case, and sexual morality in the other) as legitimate state interests for interfering with "liberty;" both refuse to recognize legitimate public health interests as justifications for the laws invalidated; and both reflect the ideological preferences of the "lawyer class" at the time the decisions were handed down.In Lochner, the Court seemingly enacted "Mr. Herbert Spencer's Social Statics" as a constitutional right, and in Lawrence the Court seemingly enacted Mr. Vatsyayana's Kama Sutra as the law of the land.

Chief Justice Roberts on Politicization of the Court

Remember when CJ Roberts visited earlier this year, and he said the Court is not a political body, it is an objective body of lawyers. He blamed the Senate for politicizing the judicial confirmation process.

I hope you didn't miss Justice Scalia's views about this issue--he blames the Court (p. 591); he says when the Court interprets the Constitution based upon the ideological or political or moral preferences of the Justices, rather than upon the text and historical understanding of the Constitution, the Court brings political pressure upon itself. If the Court acts as a politcal lawmaking body, it should not complain or be surprised when it is treated as a political lawmaking body.

I think Scalia hits the nail on the head with this observation!

Class Schedule--Last Trip Nov. 5

We have 7 classes that need to be canceled because of our 60-minute classes.


I will be speaking at a number of other law schools on the Hobby Lobby decision this semester, and at least so far these are the Con Law classes I am canceling:

1. Wed. Sept. 17 (I will be speaking at U Pittsburgh Law and Duquesne Law)
2. Wed. Oct. 15 (I will be speaking at Brooklyn Law)
3. Wed. Oct. 22 (Minnesota Law)
4. Thurs. Oct. 23 (St. Thomas Law)
5. Wed. Nov. 5 (Pace Law School)

This trip to Pace is my last trip of the Semester.

By the way, I will be doing a STIR talk on Hobby Lobby here in November.

Texas New Abortion law

Recently, the state of Texas enacted a law regulating abortion. The law has a number of provisions, but I want to focus on 2 of these provisions.

First, the law requires that a physician performing or inducing an abortion "have admitting privileges...at a hospital no more than thirty miles from the location at which the abortion is performed or induced."

Second, the law prohibits "abortion at or after 20 weeks post-fertilization."

Are these laws permissible under Casey and the "undue burden" test?

UNL Residency Requirements

Link

Class Schedule--Thursday Oct. 2

Rather than have class at our regularly scheduled time, instead we will attend Clark Forsythe's talk on Roe v. Wade and the Supreme Court's abortion jurisprudence. Here are the details (if you can not make the lecture in person, the IT Dept. will have a video recording available for your viewing convenience. Here are the details:

Who: Clark Forsythe

Biography: Clarke Forsythe is senior counsel of Americans United for Life and the author of Abuse of Discretion: The Inside Story of Roe v. Wade (Encounter Books 2013). Abuse of Discretion has been favorably reviewed in the Wall Street Journal, the Chicago Tribune, and other publications. As Senior Counsel at Americans United for Life, Clarke has been co-counsel for parties in three U.S. Supreme Court cases and has argued cases before federal and state appellate courts.  He has also testified before Congress and state legislatures.  Clarke has authored or co-authored nineteen professional legal articles on constitutional and bioethical issues. His latest, entitled, “The Medical Assumption at the Foundation of Roe v. Wade and Its Implications for Women’s Health,” was published by the Washington & Lee Law Review in 2014. His first book, Politics for the Greatest Good, which draws on lessons in political prudence from Thomas Aquinas, William Wilberforce, and Abraham Lincoln, was published by InterVarsity Press (IVP) in 2009.  Clarke has a B.A. from Allegheny College, a J.D. from Valparaiso University, and an M.A. in Bioethics from Trinity International University. Clarke and his wife, Karen, married for 32 years, have five daughters.

What: Abuse of Discretion: The Inside Story of Roe v. Wade

Summary: Abuse of Discretion: The Inside Story of Roe v. Wade examines the behind-the-scenes deliberations in the Supreme Court in 1971-73 that led to the decisions in Roe v. Wade and Doe v. Bolton. This is the most important book written about the abortion decisions since 1973, because it reviews in detail the papers of 8 of the 9 justices who voted in Roe, which have been released to the public over the past 10-15 years.  Abuse of Discretionexplains why the national controversy over Roe v. Wade continues unabated 41 years later.  Jeffrey Rosen in the Wall Street Journal said that “‘Abuse of Discretion’ provides a cautionary tale about the political and constitutional hazards of unnecessarily broad Supreme Court decisions.” If you want to understand the legal future of the abortion issue in the United States, Abuse of Discretion is necessary reading.

When: October 2, 2014

Time: 12:00 - 1:15

Where: UNL College of Law - Hanaan Auditorium

Marriage and Commerce

Suppose Congress passes and the President signs into law the following Federal Marriage Statute:

"Marriage in the United States shall consist only of the union of a man and a woman. Neither the constitution of any State, nor any state or federal law, shall be construed or enacted to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

Under this law, same-sex "marriages" recognized in the state of Massachusetts or any other state would not be permitted. Is this law within the power of Congress under the Commerce Clause on the theory that marriage is an institution that, as a class, substantially affects interstate commerce?

This Week's Assignments

Just to remind you, your assignments for this coming week are:

--Casebook p. 103-127 (McCulloch); Chemerinsky p. 237-247

-- Sebelius case: Casebook p. 174-196

We will discuss McCulloch and that first assignment on Thursday (our next meeting).

And on Friday we will be prepared to ask some questions about Chief Justice Roberts' critically important opinion in Sebelius first striking down and then saving the Individual Mandate and Obamacare.

Rules for Next Friday's Special Class

I was just given a list of rules that the Court has requested for our special visitor next Friday, as passed on to me by Dean Poser:

Please note these instructions that we just received from the court.   Please talk to your students about this on Thursday so there is no issue about it on Friday.  Also, it is important that you tell them that no one else except those registered for the class can attend and you need to look around on Friday to make sure no one else is there (except me).

Here is the note from the Court:

To allow the [Special Visitor] to be more open and candid in his dialogue with the students, [he] requests –

                  Laptops, tablets, and similar devices closed

                  Cellphones stored

                  No recording of any kind

                  No social media, Facebook, Twitter, etc.

                  No photographs

Chemerinsky On McCardle and jurisdiction stripping issues

I did not assign it, because it is too lengthy (30 pages). But Chemerisnky discusses Congressional control over Federal court jurisdiction on pages 152-183.

Again, I am not assigning it, but it is there if you want more of this issue.

My recent article on "Kermit Gosnell's Babies: Abortion, Infanticide and Looking Beyond the Masks of the Law"

I recently uploaded on SSRN my recent article on "Kermit Gosnell's Babies: Abortion, Infanticide and Looking Beyond the Masks of the Law."  I take an old concept developed many years ago by Judge John Noonan (the "masks of the law") and bring it right up to the present with discussion of the Gosnell murder conviction for "aborting" born-alive babies. 

Here is the abstract:

  Abstract:     

If, as Laurence Tribe has observed, “all law tells a story,” this Article tells two stories occurring 40 years apart—the story of Justice Harry Blackmun and the unborn human beings he covered with the legal mask of “potential” lives in Roe v. Wade in 1973, and the story of Doctor Kermit Gosnell and the unmasked babies he was convicted of murdering in his Philadelphia abortion clinic in 2013. As Professor Tribe also observes, these stories amount to “a clash of absolutes, of life against liberty,” and therefore they are stories that must be told time and again, until we get them right. These stories also demonstrate how legal concepts can be used to mask reality, and how peeking beneath the masks of the law can blow away the fog of legal illusion and give society a starkly different perspective from which to view an old constitutional issue.

The SSRN link to the piece is here (Gosnell Article). 

I am assigning this article later in the semester as part of our study of the abortion liberty.  But feel free to read it now as a preview of coming issues in Con Law I.

Great Debate Tomorrow on 20 Week "Fetal Pain" Laws

20 Week Abortion Bans: Humane Public Policy or Threat to Women’s Health and Rights  featuring Senator Danielle Conrad & Professor Teresa Collett.

Wednesday, April 2nd, 12:00 – 1:00 pm in the Auditorium 

Senator Conrad and Professor Collett will discuss the constitutional implications of 20 week abortion bans.  Also, the speakers will discuss the public policy concerns and other legal issues regarding these laws. Senator Conrad will also discuss the current legal landscape in Nebraska and the current lows on this topic.

Professor Teresa Collett is a faculty member at the University of St. Thomas School of Law. Professor Collett currently serves as Special Attorney General for the State of Oklahoma and previously served as Special Attorney General for the State of Kansas. In 2009, Pope Benedict XVI appointed Professor Collett to a five year term on the Pontifical Council for the Family. Senator Danielle Conrad is a 2003 alumnus of the University of Nebraska College of Law.  She is in her eighth year serving in the Nebraska Legislature, representing District 46 in Lincoln. 

McMullen v. Coakley

Just skim through the 2d Circuit's opinion. I just want you to be aware that this case is currently before the Supreme Court and should be decided soon. Here is a blog post on the case from SCOTUS blog:

Free speech and abortion rights collide: In Plain English

Tomorrow, the Court will hear the case of Eleanor McCullen, a seventy-seven-year-old Massachusetts grandmother who has spent over fifty thousand dollars of her own money to help pregnant women who decide not to get an abortion.  All McCullen wants, she tells the Court, is to stand on a public sidewalk to provide information and offer help to women entering an abortion clinic, but a state law prohibits her from doing so.  Based on the Court’s past track record on First Amendment cases, she may well soon get that chance.  Let’s talk about McCullen v. Coakley in Plain English.
Federal laws provide some protection for women seeking access to abortion clinics.  But some states have gone farther and enacted their own laws intended to provide women with additional protection.  In 2000, in a case called Hill v. Colorado, the Court upheld a Colorado law which drew a line one hundred feet around health care facilities and made it illegal for anti-abortion protesters to go within eight feet of anyone within that buffer zone to counsel, educate, or protest.
The law, the Court reasoned, struck the right balance between protecting the clinic’s patients from unwanted attention and the need to allow protesters to protest.
At the oral argument tomorrow, the Court will be considering a challenge by McCullen and other anti-abortion protesters to a Massachusetts law that makes it a crime to “enter or remain on a public way or sidewalk” within thirty-five feet of the entrance, exit, or driveway of an abortion clinic.  The law carves out an exception, however, for employees of the clinic.  McCullen argues that, by creating such an exception, the Massachusetts law — unlike the law at issue in Hill — discriminates based on the views of the person who is speaking:  employees of the clinic can go into the buffer zone and say anything related to their jobs, but protesters cannot.  In fact, McCullen emphasizes, the law even applies to conduct that is “entirely peaceful,” like prayer or holding an anti-abortion sign.  Another problem, McCullen points out, is that she and her fellow protesters don’t have any real alternatives to get their message across at some clinics.  Shouting at women within the buffer zone from thirty-five feet away doesn’t work, but on the other hand it is difficult for her to talk to women outside the buffer zone because it’s hard to tell who is going to the clinic and who is just walking down the sidewalk.  Finally, she suggests, if the Court were to uphold the Massachusetts law based on its ruling in Hill, the Court should simply overrule that decision.
Massachusetts paints a very different picture in its brief, which it begins by listing examples of conduct by (mostly) anti-abortion protesters that led the Massachusetts legislature to first pass a law modeled on the one upheld by the Court in Hill.  But, the state explains, that law ultimately proved both ineffective at maintaining safe access to the clinics and difficult for police to enforce – prompting the legislature to adopt the law at issue in this case.  The new law, the state continues, is intended to keep clinic entrances “open and clear of all but essential foot traffic, in light of more than two decades of compromised facility access and public safety.”  With this goal in mind, the law doesn’t “directly regulate speech” and instead only targets conduct.  Moreover, the state argues, the legislature didn’t adopt the law because it “disagreed with any underlying message”; it notes that not all of the protesters whose actions it is trying to regulate opposed abortion.
Addressing some of McCullen’s other arguments, the state contends that it doesn’t matter that the law only applies to abortion clinics, because those were the only places where the problems occurred.  Nor does it matter that the law doesn’t apply to clinic employees:  the law needed to have some kind of exemption for the people who were going in and out of the clinics, because otherwise they too would violate the law whenever they set foot in the buffer zone.  And the law still “limits” the conduct of clinic employees, allowing them to “get on with their jobs” but nothing more.  Finally, the state emphasizes that the thirty-five-foot buffer zone was a solution that it reached after extensive trial and error, and that it was the only solution that would provide safe access to clinics while still allowing protesters to express their views.
How is this going to play out tomorrow?  The Court decided Hill by a vote of six to three, but that was over thirteen years ago, and it’s now a very different Court.  The only Justices left on the Court from the Hill majority are Justices Ginsburg and Breyer; two of the others – Sandra Day O’Connor and the late Chief Justice William Rehnquist – have been replaced by the more conservative Justice Samuel A. Alito and Chief Justice John Roberts, respectively.  By contrast, all three of the dissenting Justices from Hill (Thomas, Scalia, and Kennedy) remain on the Court, and we have no reason to think that their views have changed.  So even if you assume that Justices Sotomayor and Kagan will vote to uphold the law, the state would still need a fifth Justice to prevail, and that vote could be hard to find.  Throw in that the Roberts Court has yet to meet any controversial speech that it isn’t willing to allow – whether you are talking about movies showing animal cruelty, selling violent video games to children, protests at the funeral of a fallen soldier, or lying about receiving the Medal of Honor – and the Massachusetts law could be in jeopardy.  Stay tuned . . . .we will be back to report on the oral argument in Plain English as well.

Class Schedule

Due to our 85-minute class schedule, we are required to cancel 3 classes this semester:

Here are the cancellations:

1. Thursday March 5
2. Friday March 6
3. Thursday April10

Content Neutrality

In Carey v. Brown (see casebook p. 1331), an ordinance prohibited residential picketing but exempted "the peaceful picketing of a place of employment involved in a labor dispute." Is this ordinance content neutral?

How about the Westminster ordinance which prohibits focused picketing outside "religious premises" at the time of "a scheduled religious activity." Is that content neutral?

Here is how the Court describes its rule([See Perry Education Association v. Perry Local Educators’ Ass’n, 460 U. S. 37 (1983) quoted in part at p. 1332 of casebook):

“In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which “have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. CIO, 307 U.S. 496, 515 (1939). In these quintessential public forums, the government may not prohibit all communicative activity. For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. (P. 209) Carey v. Brown, 447 U.S. 455, 461 (1980). The state may also enforce regulations of the time, place and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. . . .”

See also Krishna case infra.

New Muslim Police Officer Case

From the Volokh Blog:

Court Rejects Muslim Police Officer’s Demand for Accommodation of His Religious Practice of Wearing a Full Beard

Eugene Volokh • May 11, 2010 10:23 am

The case is Wallace v. City of Philadelphia (E.D. Pa. Apr. 26). The court’s reasoning:
1. Because the police department didn’t allow anyone to wear a full beard, it had no obligation under the Free Exercise Clause to carve out an exemption for religious objectors.
2. Under FOP Newark Lodge No. 12 v. City of Newark (3d Cir. 1999) (Alito, J.), the city does generally have an obligation to provide a religious exemption when it provides the same exemption for secular reasons, such as for people who have medical problems that make shaving inadvisable. But because Philadelphia’s medical exemption applied only to beards that were no longer than 1/4 inch, Wallace was entitled only to to this exemption (which he concluded was inadequate for his religious reasons) and nothing more.
3. The city doesn’t have to accommodate the religious objection under Title VII’s “reasonable accommodation” test, either, because (quoting Webb v. City of Philadelphia (3d Cir. 2009)), “what is at stake is the Philadelphia Police Department’s perception of its impartiality by citizens of all races and religions whom the police are charged to serve and protect. If not for the strict enforcement of [the uniform rules], the essential values of impartiality, religious neutrality, uniformity and the subordination of personal preference would be severely damaged to the detriment of the police department.”
4. My favorite quote: A police inspector testified that, when she examined Wallace, she “said to herself ‘that you could hide like a dwarf in the beard or something.’”

Another Heckler's Veto Case

Here is a link to an NBC story and video.

Assignments and Handouts

For next Thursday's class, be prepared for the first two Fr Ex assignments:

1. Linder Introduction (Link); Reynolds case (Link)


2. Casebook p. 1702-1708; Goldman case (Link); Lyng case (Link)

Also, the Handouts for Friday's class are now available in the kiosk outside the South Faculty offices.

Greetings from Panem, The Capitol

I am in The Capitol for a talk at Catholic Law School. This morning, I visited the Lincoln Memorial and read the Gettysburg Address on the Walls of the Memorial. Here is what is carved there:

"Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.
Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.
But, in a larger sense, we can not dedicate -- we can not consecrate -- we can not hallow -- this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth."


Obviously, I thought of the Newdow case and the "Wall of Separation" and Con Law II as I observed the Memorials.

See y'all next week!

Thomas and Partial Incorporation in Van Orden

Here is an almost complete excerpt from Justice Thomas' concurring opinion in Van orden. Notice how he handles the issue of incorporation and partial incorporation:

"This case would be easy if the Court were willing to abandon the inconsistent guideposts it has adopted for addressing Establishment Clause challenges, and return to the original meaning of the Clause. I have previously suggested that the Clause's text and history “resis[t] incorporation” against the States. [citations omitted] If the Establishment Clause does not restrain the States, then it has no application here, where only state action is at issue.

Even if the Clause is incorporated, or if the Free Exercise Clause limits the power of States to establish religions, see Cutter v. Wilkinson, 544 U.S. 709, 728, n. 3, 125 S.Ct. 2113, 2118, n. 3, 161 L.Ed.2d 1020 (2005) (THOMAS, J., concurring), our task would be far simpler if we returned to the original meaning of the word “establishment” than it is under the various approaches this Court now uses. The Framers understood an establishment “necessarily [to] involve actual legal coercion.” Newdow, supra, at 52, 124 S.Ct. 2301 (THOMAS, J., concurring in judgment); Lee v. Weisman, 505 U.S. 577, 640, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (SCALIA, J., dissenting) (“The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty ”). “In other words, establishment at the founding involved, for example, mandatory observance or mandatory payment of taxes supporting ministers.” Cutter, supra, at 729, 125 S.Ct., at 2126 (THOMAS, J., concurring). And “government practices that have nothing to do with creating or maintaining ... coercive state establishments” simply do not “implicate the possible liberty interest of being *694 free from coercive state establishments.” Newdow, supra, at 53, 124 S.Ct. 2301 (THOMAS, J., concurring in judgment).

There is no question that, based on the original meaning of the Establishment Clause, the Ten Commandments display at issue here is constitutional. In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense at seeing the monument as he passes it on his way to the Texas Supreme Court Library. He need not stop to read it or even to look at it, let alone to express support for it or adopt the Commandments as guides for his life. The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause.

Returning to the original meaning would do more than simplify our task. It also would avoid the pitfalls present in the Court's current approach to such challenges. This Court's precedent elevates the trivial to the proverbial “federal case,” by making benign signs and postings subject to challenge. Yet even as it does so, the Court's precedent attempts to avoid declaring all religious symbols and words of longstanding tradition unconstitutional, by counterfactually declaring them of little religious significance. Even when the Court's cases recognize that such symbols have religious meaning, they adopt an unhappy compromise that fails fully to account for either the adherent's or the nonadherent's beliefs, and provides no principled way to choose between them. Even worse, the incoherence of the Court's decisions in this area renders the Establishment Clause impenetrable and incapable of consistent application. All told, this Court's jurisprudence leaves courts, governments, and believers and nonbelievers alike confused-an observation that is hardly new. See Newdow, supra, at 45, n. 1, 124 S.Ct. 2301 (THOMAS, J., concurring in judgment) (collecting cases).

First, this Court's precedent permits even the slightest public recognition of religion to constitute an establishment of religion. For example, individuals frequenting a county courthouse have successfully challenged as an Establishment Clause violation a sign at the courthouse alerting the public that the building was closed for Good Friday and containing a 4-inch-high crucifix. Granzeier v. Middleton, 955 F.Supp. 741, 743, and n. 2, 746-747 (E.D.Ky.1997), aff'd on other grounds, 173 F.3d 568, 576 (C.A.6 1999). Similarly, a park ranger has claimed that a cross erected to honor World War I veterans on a rock in the Mojave Desert Preserve violated the Establishment Clause, and won. See Buono v. Norton, 212 F.Supp.2d 1202, 1204-1205, 1215-1217 (C.D.Cal.2002). If a cross in the middle of a desert establishes a religion, then no religious observance is safe from challenge. Still other suits have charged that city seals containing religious symbols violate the Establishment Clause. See, e.g., Robinson v. Edmond, 68 F.3d 1226 (C.A.10 1995); Murray v. Austin, 947 F.2d 147 (C.A.5 1991); Friedman v. Board of Cty. Comm'rs of Bernalillo Cty., 781 F.2d 777 (C.A.10 1985) (en banc). In every instance, the litigants are mere “[p]assersby ... free to ignore [such symbols or signs], or even to turn their backs, just as they are free to do when they disagree with any other form of government speech.” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 664, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (KENNEDY, J., concurring in judgment in part and dissenting in part).

Second, in a seeming attempt to balance out its willingness to consider almost any acknowledgment of religion an establishment, in other cases Members of this Court have concluded that the term or symbol at issue has no religious meaning by virtue of its ubiquity or rote ceremonial invocation. See, e.g., id., at 630-631, 109 S.Ct. 3086 (O'CONNOR, J., concurring in part and concurring in judgment); Lynch v. Donnelly, 465 U.S. 668, 716-717, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (Brennan, J., dissenting). But words such as “God” have religious significance. For example, just last Term this Court had before it a challenge to the recitation of the Pledge of Allegiance, which includes the *696 phrase “one Nation under God.” The declaration that our country is “ ‘one Nation under God’ ” necessarily “entail[s] an affirmation that God exists.” Newdow, 542 U.S., at 48, 124 S.Ct. 2301 (THOMAS, J., concurring in judgment). This phrase is thus anathema to those who reject God's existence and a validation of His existence to those who accept it. Telling either nonbelievers or believers that the words “under**2867 God” have no meaning contradicts what they know to be true. Moreover, repetition does not deprive religious words or symbols of their traditional meaning. Words like “God” are not vulgarities for which the shock value diminishes with each successive utterance.

Even when this Court's precedents recognize the religious meaning of symbols or words, that recognition fails to respect fully religious belief or disbelief. This Court looks for the meaning to an observer of indeterminate religious affiliation who knows all the facts and circumstances surrounding a challenged display. See, e.g., Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 780, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (O'CONNOR, J., concurring in part and concurring in judgment) (presuming that a reasonable observer is “aware of the history and context of the community and forum in which the religious display appears”). In looking to the view of this unusually informed observer, this Court inquires whether the sign or display “sends the ancillary message to ... nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.’ ” Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 309-310, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (quoting Lynch, supra, at 688, 104 S.Ct. 1355 (O'CONNOR, J., concurring)).

This analysis is not fully satisfying to either nonadherents or adherents. For the nonadherent, who may well be more sensitive than the hypothetical “reasonable observer,” or who may not know all the facts, this test fails to capture completely the honest and deeply felt offense he takes from the government conduct. For the adherent, this analysis takes no account of the message sent by removal of the sign or display, which may well appear to him to be an act hostile to his religious faith. The Court's foray into religious meaning either gives insufficient weight to the views of nonadherents and adherents alike, or it provides no principled way to choose between those views. In sum, this Court's effort to assess religious meaning is fraught with futility.

Finally, the very “flexibility” of this Court's Establishment Clause precedent leaves it incapable of consistent application. See Edwards v. Aguillard, 482 U.S. 578, 640, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (SCALIA, J., dissenting) (criticizing the Lemon test's “flexibility” as “the absence of any principled rationale” (internal quotation marks omitted)). The inconsistency between the decisions the Court reaches today in this case and in McCreary County v. American Civil Liberties Union of Ky., ante, 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729, 2005 WL 1498988 (2005), only compounds the confusion.

The unintelligibility of this Court's precedent raises the further concern that, either in appearance or in fact, adjudication of Establishment Clause challenges turns on judicial predilections. See, e.g., Harris v. Zion, 927 F.2d 1401, 1425 (C.A.7 1991) (Easterbrook, J., dissenting) (“Line drawing in this area will be erratic and heavily influenced by the personal views of the judges”); post, at 2869 (BREYER, J., concurring in judgment) (“I see no test-related substitute for the exercise of legal judgment”). The outcome of constitutional cases ought to rest on firmer grounds than the personal preferences of judges.

Much, if not all, of this would be avoided if the Court would return to the views of the Framers and adopt coercion as the touchstone for our Establishment Clause inquiry. Every acknowledgment of religion would not give rise to an Establishment Clause claim. Courts would not act **2868 as theological commissions, judging the meaning of religious matters. Most important, our precedent would be capable of consistent and coherent application. While the Court correctly*698 rejects the challenge to the Ten Commandments monument on the Texas Capitol grounds, a more fundamental rethinking of our Establishment Clause jurisprudence remains in order."



Are you convinced by his reasoning? Or do you disagree? What are your thoughts?

University of Alabama Censors Pro-Life Student Group

Gotta love I-Phones sometimes.

Here is a link with a video of viewpoint censorship in action!

UPDATE

ADF press release:

A pro-life student group’s display will return to a hallway at the University of Alabama Thursday. The university apologized Monday to Bama Students for Life, represented by attorneys with Alliance Defending Freedom, for an official’s decision to remove the display on Feb. 6 because some people said they found it “offensive.”

The official removed the display from its place in the Ferguson Student Center without any notification to the group. After Bama Students for Life, with the help of Alliance Defending Freedom, registered a formal complaint about the incident last week, the center’s director apologized for the display’s removal and said he would allow the group to put it back up.

“Censorship is inconsistent with ‘the marketplace of ideas’ that a public university is supposed to be,” said Legal Counsel Matt Sharp. “We commend the university for its quick response to Bama Students for Life’s free speech concerns.”

The display, which featured several abortion-related facts, pictures of women who died as a result of having an abortion, and two small pictures of aborted babies, was among numerous other student group displays in a hallway of the Ferguson Student Center. The president of Bama Students for Life captured the center’s event coordinator on video claiming that university policy allows her to remove displays that have “offensive or graphic material”; however, the university’s policy pertaining to display cases mentions nothing about offensive or graphic content.

By the Rivers of Babylon

Below is a link to my SSRN piece (a short essay) entitled "By the Waters of Babylon: Christian Libertarianism in the Age of Obama." My basic idea is that if we find ourselves exiles in Babylon (Secular America) we ought to be able to agree that a small Babylonian government is better than a large Babylon government (i.e. in Babylon, Christians should be small government libertarians). Here is the link (which allows you to download the article free of charge):

        http://ssrn.com/abstract=2010131

A shorter version of this paper will be published soon in The Christian Lawyer.

I am not assigning this piece, but you may find it interesting. My basic premise is that the best way to protect religious liberty, in a society that seems not to value religious liberty, is to protect liberty generally. In other words, if liberty is maximized for everyone, religious liberty will be maximized as well. Liberty for all is liberty for each one.

Town of Greece Case--SCOTUS Oral Arguments

From Religion Clause blog:

 

Town of Greece Case Argued Before Supreme Court

The U.S. Supreme Court heard oral arguments today in Town of Greece v. Galloway.  At issue is the constitutionality of opening city council meetings with sectarian prayers. The full transcript of the oral arguments is now available. SCOTUSblog has a recap of the oral arguments.  ABA Preview has a detailed analysis of the case.

Here is a link to Marsh v. Chambers, the existing landmark case concerning legislative prayer.

The opinion of the Second Circuit in  Town of Greece  is here.

A Right to Be Free From Religion

A few years ago, a student asked me a great question--why isn't there a right under the EC to be free from religion? The idea is that any religious expression in the public square is a deprivation of the citizens right to be free from religion.

What do the rest of you think about that?

We will talk about this again soon, but here is an excerpt of Justice Scalia's dissent in McCreary County (one of the Ten Commandment cases) in which he addresses this issue and compares the USA to France (link).

If nonreligious people should have a right to be free from religion, should religious people have a right to be free from nonreligion? How would we construct a public square that respected both of these calls for triumphalism? What would a pluralistic public square, one seeking to reflect the cultural and religious diversity of the local community, look like?

Today's WSJ on The Little Sisters of the Poor

The New Year's Eve emergency injunction protecting the Little Sisters of the Poor from ObamaCare's birth-control mandate was unusual enough. The Supreme Court rarely grants such relief, and the order was issued by liberal Justice Sonia Sotomayor. But the permanent stay pending appeal, issued late Friday by the full Supreme Court with no recorded dissent, was rarer still—and a rebuke to the Obama Administration's bullying conception of religious liberty.

The Little Sisters sued because they believe the form they must sign to supposedly exempt themselves from the mandate instructs others to provide contraceptives and abortifacients in their name, and thus violates their faith and the First Amendment. Nearly all of the lower courts that are adjudicating the 91 lawsuits challenging the rule gave religious organizations a reprieve, but the Tenth Circuit Court of Appeals did not for the Little Sisters.

The Justice Department also argued that this order of Catholic nuns who run a Colorado nursing home and hospice should be forced to comply. You might call it a war on religiously devout women.

The High Court's order bars the Administration from imposing fines on any nonprofit that declares a religious identity and objects to the mandate. It doesn't go to the merits or relate to the separate contraceptive mandate cases that the Court will hear in March. Yet the fact that such an extraordinary intervention was necessary speaks volumes about the Administration's ideological intolerance.

Strong words. I am not sure I would put it this way, but I am sure religious ministries such as the Little Sisters feel crushed by the power of Big Government in these contraceptive mandate cases.

RLUIPA Protects Religious Liberty in Prisons

Here are two recent posts from ReligionClause blog:

One

10th Circuit Rules For Native American Inmate In Cogent Review Of RLUIPA's Requirements

In a highly articulate 31-page opinion by Judge Gorsuch in Yellowbear v. Lampert, (10th Cir., Jan. 23, 2014), the U.S. 10th Circuit Court of Appeals yesterday reviewed each element of a RLUIPA prisoner's rights claim and reversed the trial court's summary judgment against a Native American inmate. Here is the court's description of the case:

Andrew Yellowbear will probably spend the rest of his life in prison. Time he must serve for murdering his daughter. With that much lying behind and still before him, Mr. Yellowbear has found sustenance in his faith. No one doubts the sincerity of his religious beliefs.... 

That takes us to the nub of our case. Mr. Yellowbear, an enrolled member of the Northern Arapaho Tribe, seeks access to the prison’s existing sweat lodge to facilitate his religious exercises. The prison has refused. The prison’s sweat lodge is located in the general prison yard and Mr. Yellowbear is housed in a special protective unit (not because of any disciplinary infraction he has committed, but because of threats against him). Prison officials insist that the cost of providing the necessary security to take Mr. Yellowbear from the special protective unit to the sweat lodge and back is “unduly burdensome.” Mr. Yellowbear disagrees and seeks relief under RLUIPA. For its part, the district court discerned no statutory violation and entered summary judgment against Mr. Yellowbear. Mr. Yellowbear asks us to undo that judgment so that his case might proceed to trial.

At the end of the day, we find that’s exactly the relief we must provide.

AP reports on the decision. 

Two

Muslims Want Florida Prisons To Offer Halal Meals

Now that the Justice Department has won a preliminary injunction from a federal district court ordering Florida prisons to make kosher meals available by July 1 to all prisoners with a sincere religious basis for keeping kosher (see prior posting), Muslim groups are asking for Halal meals as well. In a press release yesterday, CAIR-Florida said:

We welcome the decision [on kosher food] as an important step in protecting religious rights of incarcerated individuals. It is only fair and equitable that if Jewish inmates receive kosher food, as they should, that Muslim inmates have access to halal meals. Muslim businesses in our state stand ready to offer the advice and services needed to provide halal meals to inmates.

According to the Huffington Post, Halal prison meals would cost only about one-third of the cost of kosher meals.

Three

Here is a little more on the cost of providing Kosher meals:

States Concerned Over Costs and Demand For Prison Kosher Food

Today's New York Times carries a front page story titled You Don’t Have to Be Jewish to Love a Kosher Prison Meal, focusing on the added cost to prison systems of serving kosher food ($7 per day vs. $1.54 in Florida) and the feigning of Jewish religious beliefs by some inmates in order to be placed on kosher diets:

Some states, like New York, do nothing to try to discern who is feigning Jewishness. In California, inmates talk with a rabbi who will gauge, very generally, a prisoner’s actual interest. 

But some Jewish groups in Florida are pushing for greater control, which may pose a difficult legal hurdle.

Leviathan State vs. Little Sisters of the Poor

Weekend advice from Charles Krauthammer: "when there's a suit between the leviathan state of Obama against the Little Sisters of the Poor, take the side of the Little Sisters of the Poor. You can't lose."

SCOTUS agrees, at least for now--from today's Washington Post:

The Supreme Court said Friday that a group of Colorado nuns does not have to comply with the Affordable Care Act’s requirement that employers offer insurance plans that cover contraceptives while the nuns pursue a legal challenge of that portion of the law. In a short and unsigned order, the court said the Little Sisters of the Poor must simply inform the Obama administration that they are a religious organization that should be exempt from the requirement.

Foot Baths

Let's start with a discussion of the NYC footbaths case.

How should the First Amendment apply there?

Does it violate the EC for government to try to accommodate religious liberty?

Heckler's Veto in the News

Lat's start today's class with a discussion of the "Wall of Separation" in the news:


From January 16, 2014, Washington Times:

The Wisconsin public university system removed all its copies of the Gideon Bible from the campus conference center after the Freedom From Religion Foundation complained of a constitutional violation.
Administrators with the University of Wisconsin-Extension said they received the complaint in November and after weeks of consideration and discussion, decided to remove from the Lowell Center all 137 copies of the bible — a normal fixture at guest rooms and in hotels around the nation.
“Permitting members of outside religious groups the privilege of placing their religious literature in public university guest rooms constitutes state endorsement and advancement of these Christian publications,” said FFRF attorney Patrick Elliot, in a letter of complaint, UPI reported. And on the group’s website, he wrote that “while private hotels may choose to put any type of literature they want in their guest rooms, state-run colleges have a constitutional obligation to remain neutral toward religion.”
In response, a UW-Extension spokesman said in a letter: “We reviewed the concern raised about the placement of Bibles in our guest rooms and decided to remove them. We want to make sure all guests are comfortable in our lodging.”

Read more: http://www.washingtontimes.com/news/2014/jan/16/wisconsin-university-system-bans-gideons-bibles-ca/#ixzz2quAfLDI2

These Bibles placed in University-owned hotel rooms were not hurting anyone or depriving anyone of any liberty interest. If you don't want to read the Gideon Bible, don't read it. Leave it in the nightstand drawer and read whatever you want to  read. But why demand a heckler's veto depriving other hotel guests of access to the Bibles?

Supreme Court Hears Oral Arguments In Abortion Clinic Buffer Zone Case

From ReligionClause Blog:

 

Supreme Court Hears Oral Arguments In Abortion Clinic Buffer Zone Case

The U.S. Supreme Court this morning heard oral arguments in McCullen v. Coakley, a case challenging on free speech grounds a Massachusetts law creating a 35-foot buffer zone around abortion clinics to shield women entering the clinics from abortion opponents.  The law allows only clinic employees acting within the scope of their employment to be on sidewalks within the buffer zone. The full transcript of the oral arguments is now available. SCOTUSblog has a recap of the arguments, as well as well as a case page with links to all the briefs, the lower court opinion and other information.

Con Law II Class Spring Semester--First Reading

Con Law II students Spring Semester 2014. 

 I would like you to read my recent article on the Establishment Clause and free speech interests. It should make for interesting reading over the long winter break.

We will discuss this in class on our first session.

This is an article critiquing the Supreme Court's jurisprudence concerning passive religious displays in the public square, and the true source of the Court's Wall of Separation Between Church and State. Hint: It is not Jefferson, but rather an organization that Justice Hugo Black once belonged to!

My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available (free download) at SSRN